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Doctor's duty to warn extends to patients, not third parties.

A woman can sue a doctor because he didn't warn his patient not to drive while taking certain drugs; however, she cannot sue him for failing to consider the foreseeable harm to her when deciding whether to prescribe the drugs in the first place. So ruled the Tennessee Supreme Court The Tennessee Supreme Court is the highest appellate court of the State of Tennessee. Unlike those of other states, the Tennessee Supreme Court is responsible for the appointment of the state attorney general. , in a split decision that could have far-reaching effects the next time it hears a case involving the duty to warn duty to warn AIDS A legal concept indicating that a health care provider who learns that an HIV-infected Pt is likely to transmit the virus to another identifiable person must take steps to warn that person  third parties. (Burroughs v. Magee, No. W2001-00238-SC-R11-CV, 2003 WL 22247369 (Tenn. Oct. 1,2003).)

In 1997, Judy Burroughs's car was hit by a vehicle driven by Roger Hostetler when he van a red light. She was injured in·jure  
tr.v. in·jured, in·jur·ing, in·jures
1. To cause physical harm to; hurt.

2. To cause damage to; impair.

, and her husband was killed. Hostetler had been taking the prescription drugs prescription drug Prescription medication Pharmacology An FDA-approved drug which must, by federal law or regulation, be dispensed only pursuant to a prescription–eg, finished dose form and active ingredients subject to the provisos of the Federal Food, Drug,  Soma soma (sō`mə), psychotropic plant, the juice of which was sometimes drunk as part of the Vedic sacrifice (see Veda). Many hymns in the Rig-Veda are in praise of soma.  and Esgic-Plus, which have a powerful barbiturate barbiturate (bärbĭch`ərāt'), any one of a group of drugs that act as depressants on the central nervous system. High doses depress both nerve and muscle activity and inhibit oxygen consumption in the tissues.  effect when combined.

Burroughs sued Hostetler's doctor, Robert Magee, for his failure to warn Hostetler about the medications' potentially hazardous effects on driving and for failing in his "duty of care" to her--as a member of the driving public--when deciding whether to prescribe the drugs. Because Hostetler was a suspected drug abuser drug abuser nchi fa uso di droghe  and a big-rig truck driver, she argued, he posed a clearly foreseeable danger to the public.

Hostetler's medical file included a note from his previous doctor stating that the doctor had refused to prescribe the same medications to Hostetler on three separate occasions because "I think this has reached the stage of substance abuse." In his testimony, Dr. Magee admitted that he had not read the note. Nevertheless, the trial court granted Magee's motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers .

The appeals court then reversed in part and affirmed in part, reinstating only the claim for failure to warn Hostetler. The court ruled that expanding the doctor's liability to include harm to others besides Hostetler did not alter his original duty to his patient and did not place an undue burden on the physician. The Tennessee Supreme Court affirmed that conclusion and remanded the case for further proceedings.

Both Tennessee courts cited the Indiana Supreme Court's decision in Webb v. Jarvis: "Were we to impose a duty on a physician to consider the risk of harm to third persons before prescribing medication to a patient, we would be forcing the physician to weigh the welfare of unknown persons against the welfare of his patient. Such an imposition is unacceptable." (575 N.E.2d992 (Ind. 1991).)

Houston Gordon of Covington, Tennessee Covington is a town in Tipton County, Tennessee, United States. The population was 8,463 at the 2000 census. It is the county seat of Tipton CountyGR6. Geography
Covington is located at  (35.
, who represented Burroughs, called the ruling "a terrible decision."

"There's not a nickel's worth of difference between the two [claims] ," the lawyer said. "It's not a duty issue, it's a foreseeability issue, and if the doctor had just adhered to standard duty of care required, the accident would not have happened."

Brian Dunigan, a personal injury lawyer in Goodlettsville, also was puzzled by the court's reasoning. "I just don't see the distinction between the claims," he said. "Simply warning a patient, in this situation, is not doing that much to protect the patient's potential victims. That's clearly not enough to avert foreseeable harm."

Gordon described the court's decision as a capitulation CAPITULATION, war. The treaty which determines the conditions under which a fortified place is abandoned to the commanding officer of the army which besieges it.
 to the state's medical community. The Tennessee Medical Association filed an amicus brief on behalf of Magee, emphasizing the public policy implications of the case.

"Doctors love this decision," said Gordon. "They are immunized now in the area of prescription drugs."

Dunigan predicted that the issue will arise next in a mental-health-related case, since courts in those cases tend to be "very protective of third parties."

For his part, Gordon is taking his case back to the trial level. "We got half a loaf," he said. "We can win with half a loaf."
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Title Annotation:Tennessee
Author:Sileo, Carmel
Date:Jan 1, 2004
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